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TMI Blog2022 (5) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... rence to the question no 15 put before him. This explanation was submitted before AO in 153A and 147 proceedings, and the respective Assessing Officers accepted the same. In our considered view, from the above facts, it is clear that the allegation of the Pr CIT that the Assessing Officer in framing the assessment under section 143(3) r.w.s. 147 has not taken cognizance of the incriminating material seized during the course of search at the premises of Swastik Group is incorrect. In both the proceedings, the respective AO's has agreed and taken one of the possible view and now Ld Pr CIT cannot impose his another possible view. In order to accept the propositions of the Ld Pr CIT for revision, it is the duty of the Pr CIT to bring on record the relevant material to substantiate the claim that there is a transaction between the assessee and the Swastik Group. In two proceedings conducted by the respective AOs has accepted the stand of the assessee, without there being any material linking the transactions with the assessee and the Swastik Group, the Pr CIT cannot once against direct the AO to further investigate. Hence, the Pr CIT has no jurisdiction to initiate proceedings u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct income of the assesse in this assessment year. 4. Aggrieved the assesse preferred an appeal before us with the delay of 62 days and filed an affidavit with the reasons for filing the appeal in delay. The reasons given in the affidavit are on the medical grounds. Ld.AR prayed that the delay may be condoned. On the other hand, Ld DR objected to the name mentioned in the Affidavit as Pradip whereas in the search proceedings, the assesse submitted that the correct name is Pradeep. The mismatch in the name are relevant owing to the stand taken by the assesse in the search proceedings. In this regard, the Ld AR agreed to file proper affidavit in this regard and filed the same. Considering the medical grounds, the delay in filing the appeal is condoned. 5. At the time of hearing, Ld AR submitted that the Principal Commissioner of Income-tax (Central) 3, Mumbai issued various show cause notices under section 263 of the Act dated 16.11.2018, 05.03.2019, 12.03.2019 and the last one dated 01.08.2019 by which, based on the request of the assessee, the Pr CIT provided the following (a) Copy of communication between Investigation Wing and Assessing Officer (Deputy /Asst Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequently, Search and seizure action under section 132 of the Act was carried out on Cosmos Group of cases on 24.09.2014. The assessee's residential premise was also covered in the search operations. There was no seizure of any relevant or incriminating document/ material relating to the assessee in the course of search at his residential premises (refer copy of the Panchnama at page nos 1 to 15 of the paper book) 10. Consequent to aforesaid search action, notice under section 153A of the Act dated 26.08.2016 was served on 06.09.2016 on the assessee and the assessee filed his return of income, declaring total income at the same figure as declared in the original return of income. During the course of assessment proceedings under section 143(3) r.w.s. 153A of the Act, the Assessing Officer by notice dated 30.11.2016 (refer page nos 16 to 19 of the paper book) required the assessee to explain (a) the source of cash loan of Rs. 6,13,89,930 and; (b) the source of cash paid Rs 1.35 crores for purchase of land. The enclosures to the aforesaid notice are the same as provided by the Pr CIT in the proceedings under section 263 of the Act. 11. Ld AR brought to ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder consideration i.e. AY. 2013-2024. our client has not paid any amount by way of cheque amounting to Rs.0,25,00,000/- as alleged by your for goodself in the said Show Cause Notice. 2.5) Further, on perusal of the A.I.R. statement it is also being brought to your goodself notice that no such Land at Vashind has been Purchased and registered in the name of our client. 3) Thus, it is very clear from the above 3.1) That during the year under consideration, our client has not entered into any transactions for acquisition of Land at Vashind by way of Cash/ Cheque with the Swastik Group as alleged by your goodself in the said Show Cause Notice. 4) Further, with regard to the A.Y. 2014-15, it is stated in the said Annexed statement to the Show Cause Notice that our client has given Cash loan / advances to the Swastik Group amounting to Rs. 6,13,89,930.00 4.1) In this respect, we would like to state that on going through the statement recorded of Shri Deepak Shah wherein he has been authorized to state the replies on behalf of various concern of swastik group and their individual Members, Partners and companies of s-wastik group, particularly Q.No. 15 16 (which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds of different concerns/persons for different financial years shall be submitted within a week./1 say. and state that we have offered this undisclosed to tax voluntarily in order to buy peace of mind and avoid vexed litigation. I request that in no penal consequences should fellow on such disclosure of undisclosed income. 4.3) Q. 16 Please again peruse the seized documents referred above. These documents clearly reveal the names of the persons against whom these amounts are shown and the title of the excel spread sheet is loans. There are interest rates and amounts of interest and terms of payments of interest are also written/ mentioned on these documents Therefore please explain as to why these should not be considered as cash loans. Ans: We have perused the said documents very careful. I say and state that the names of the person appearing on these sheets are our close friends, business associates and relatives. We have accepted cheque loans from some of them which are reflected in the regular books of account. Such names of the close friends/relatives and business associates were handy and easy to be identified with the amounts which were shown as cash loans. Such n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer passed the assessment order dated 26.12.2016 accepting the submission made by the assessee in connection with the cash loan of Rs. 6,13,89,930 but went on to make addition of Rs 1,35,00,000 in assessment year 2013-14 (page nos 33 to 38 and 40 to 47 of the paper book). 13. Aggrieved by this order for the A.Y. 2013-14 (page nos 39 to 47 of the paper book), assesse preferred an appeal before the CIT(A) (page nos 48 to 57 of the paper book). 14. Ld. AR submitted that the assessment for AY 2011-12 (the year under reference) was reopened by notice under section 148 dated 27.03.2018 (reasons recorded @ page nos 58 and 59 of the paper book) 15. Further, he submitted that the Assessing Officer passed an assessment order under section 143(3) r.w.s. 147 dated 28.12.2018 after making an addition of ₹.1,10,00,000 under section 69 of the Act (refer assessment order dated 28.12.2018 @ page nos 68 to 75 of the paper book) 16. Aggrieved assessee preferred an appeal before the CIT(A) (page nos 60 to 67 of the paper book) for both the Assessment Years i.e. A.Y. 2013-14 and A.Y. 2011-12. Ld. AR submitted that in both the appeals preferred by the assessee, Ld.CIT(A) deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crore a sum of Rs. 1.35 crore was paid in cash and a sum of Rs. 6.25 crore was paid in cheque and an amount of Rs. 10.77 crore was still payable. (b) Another seized document showed that the said Pradeep Chopra had given cash loan of Rs. 6,13,89,930 to Swastik Group. 21. We observe from the letters dated 06.12.2016 and 20.12.2016 filed by the assessee in response to the aforesaid show cause notice, and noticed that assessee has stated that the Assessing Officer considered the above explanation and on the basis of the statement on oath of Mr Deepak Shah, director/promoter of Swastik Group who stated that the loan amounts represented funds belonging to the Swastik Group and the receipt of those funds had no link with the persons whose names were mentioned against them in seized sheets of paper, did not make any addition in respect of the alleged cash loan paid by the assessee of Rs 6,13,89,930 to Swastik Group. Thus, the explanation was accepted by the Assessing Officer and hence, no addition was made on this count. However, Assessing Officer made an addition of Rs 1,35,00,000 under section 69B as unexplained investment in A.Y. 2013-14 by passing an order under section 143(3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a second proposition against the impugned order of the Pr CIT stated that the AO has framed the reassessment order for A.Y. 2011-12 under section 147 of the Act on 28.12.2018 making an addition of Rs 1,10,00,000. This order is under revision by the Pr CIT under section 263 of the Act by his order dated 30.08.2019. This ground has been allowed by the CIT(A) by his order dated 20.08.2019 which is prior to the date of the order of the Pr CIT. He further stated that the Ld. CIT(A) by his order dated 20.08.2019 has deleted the addition of ₹.1,35,00,000 also made by the Assessing Officer in his order for A.Y. 2013-14. The Ld. AR therefore, argued that the Pr CIT loses his right to pass the impugned order by virtue of the Explanation 1(c) to section 263 of the Act and hence, needs to be quashed. However, we observed that the issue raised by the Pr CIT in the revisional order is different i.e., two materials were found during search, one is the above issue of land dealings and other one is the loan transaction of Rs. 613,89,930/-. Ld Pr.CIT raised the issue of second i.e. loan transaction. With regard to first issue, it reached the finality because of the first appellate order. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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